I believe most would agree, the Department of Labor’s (DOL) interpretative guidance typically provides useful insight to employers navigating often tricky wage and hour laws. This was not the case with the DOL’s decades-old guidance regarding whether an employer was a “retail or service establishment” and could claim an overtime exemption for certain employees paid
DOL Green Lights Bonuses for Employees with Fluctuating Work Schedules
The U.S. Department of Labor (DOL) has issued a final rule under the Fair Labor Standards Act (FLSA) expressly authorizing employers to offer bonuses, hazard pay, and other premiums to employees whose hours, and regular rate of pay, vary from week to week.
The final rule revises 29 CFR §778.114, which is the DOL regulation that specifies how overtime is to be computed for salaried, non-exempt employees who work a fluctuating workweek. The new rule clarifies that bonuses, premium payments, commissions, and hazard pay on top of fixed salaries are compatible with the fluctuating workweek method of compensation and that employers must include such variable compensation when calculating an employee’s regular rate for overtime purposes. The final rule includes example calculations to illustrate how to factor in such payments.
Continue Reading DOL Green Lights Bonuses for Employees with Fluctuating Work Schedules
DOL Proposes Rule to Make Bonus and Incentive Pay Compatible With Fluctuating Workweek
On November 5, 2019, the U.S. Department of Labor published a proposed rule that would make it easier for some employers to apply the “Fluctuating Workweek” method of calculating overtime pay for certain non-exempt employees.
Background
For those not familiar with the concept, the fluctuating workweek method is one way of calculating overtime pay for non-exempt employees who are paid a fixed salary but whose hours fluctuate from week to week. The fluctuating workweek method can be extremely advantageous for employers because it allows an employer to pay a non-exempt employee a fixed salary covering all of the employee’s straight-time work, regardless of the number of hours worked. If an employee works overtime, they still receive premium pay for each hour worked, but the rate is one-half of the employee’s regular rate instead of 1.5 times the regular rate. For a full explanation of this method and the conditions under which it can be used, check out our earlier explanation here.
Under the current rules, several conditions must be met before an employer can use the fluctuating workweek method. These include:
DOL Proposes $35,308 Minimum Salary For Exempt Employees
Earlier today (March 7, 2019), the U.S. Department of Labor announced new proposed regulations (.pdf) that would increase the minimum salary for employees to qualify for the Executive, Administrative, and Professional exemptions under the Fair Labor Standards Act to $679 per week, equivalent to $35,308 per year. This is an increase from the current minimum
Employees Are Not Entitled to Compensation for FMLA Covered Breaks
As mentioned previously here last summer, the U.S. Department of Labor’s Wage & Hour Division has brought back the Opinion Letter, the process previously used by attorneys and HR professionals to obtain guidance from the WHD. The DOL dropped the practice in 2010, but it has since been reinstated.
Yesterday, on April 12, 2018, the
What to Make of the DOL’S PAID Program
You may have read about the U.S. Department of Labor’s new “Payroll Audit Independent Determination” or “PAID’’ pilot program. Under this program, the DOL invites employers to voluntarily audit their payroll practices and disclose any “non-compliant practices” to the DOL. The DOL then reviews the employer’s records and calculations of what is owed to employees,
Explanation of the DOL’s Proposed Rules on Tips
There’s been plenty of press this week regarding the U.S. Department of Labor’s proposed rules governing employer treatment of tips. Commentators are debating whether the proposed changes are a sensible return to the four corners of the Fair Labor Standards Act or a cash-grab for the restaurant industry at the expense of workers. We’ll leave
Just When You Thought the DOL’s OT Rule Was Dead, It Lives to Fight Another Day
As my colleague Bill Pokorny reported back on August 31, a Texas District Court struck down the Obama Administration’s FLSA Overtime Exemption Rule, holding that the Department of Labor (DOL) exceeded its authority by increasing the minimum salary for the Executive, Administrative, and Professional Exemptions to 
$913 per week. In a (somewhat) surprise move,
Opinion Letters Are Back!
The U.S. Department of Labor’s Wage & Hour Division announced today that it is bringing back the WHD Opinion Letter.
Opinion letters have long been one of the most useful resources for lawyers and HR professionals trying to figure out how to comply with the laws enforced by the WHD, including the Fair Labor Standards
DOL Withdraws Obama Era Interpretations On Independent Contractors and Joint Employment
On June 7, Secretary of Labor Alexander Acosta announced the withdrawal of two Administrator Interpretations (“AIs”) issued under the Obama administration regarding joint employment and independent contractors. We previously discussed the AI on independent contractors here, and the